Varying Scrutiny: Should The Medium Determine The Level of Protection The First Amendment Affords?
A law prohibiting a newspaper from printing an advertisement regarding local government candidates, a cable television operator from airing an advertisement regarding presidential candidates, or a website from displaying an advertisement regarding ballot initiatives can only stand if it is narrowly tailored to further a compelling government interest. This Court applies strict scrutiny review to laws that “suppress, disadvantage, or impose differential burdens upon speech because of its content.” Turner Broad. Sys. v. FCC, 512 U.S. 622, 642 (1994). Content-based restrictions have been referred to as “the essence of censorial power,” Austin v. Mich. State Chamber of Commerce, 494 U.S. 652, 699 (1990) (Kennedy, J., dissenting), and as such, are nearly universally presumed to be invalid.
Recognizing the grave threats of censorship that content-based restrictions impose on the free trade of ideas, this Court requires that such restrictions pass the most exacting scrutiny – that is, unless the law censors broadcasters. Forty-five years ago, in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), reasons of technological scarcity led the Court to afford governmental restraints on broadcast a higher level of deference than restrictions on other mediums of expression. See also FCC v. League of Women Voters, 468 U.S. 364, 380 (1984). Thus, if the aforementioned examples prohibited broadcasters, rather than newspapers, cable television operators or website providers, from airing advertisements based on their content, such laws need only be narrowly tailored to further a substantial government interest to withstand constitutional challenge. Application of this lower level of scrutiny to laws that prohibit or limit expression in broadcast radio or television based on content forecloses an entire medium of expression, and in doing so, conflicts with this Court’s traditional First Amendment jurisprudence.
Nowhere is this conflict more dangerous than when the content-based restriction prohibits public discourse including, but not limited to, speech regarding political candidates and matters of public interest, because “public discussion is a political duty.” Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). “Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs.” Brown v. Hartlage, 456 U.S. 45, 51-52 (1982) (quoting Mills v. Alabama, 384 U.S. 214, 218-19 (1966)).
When a law burdens political or public issue speech this Court applies the most exacting scrutiny available and will uphold such restrictions only if they are narrowly tailored to serve a compelling government interest. Buckley v. Valeo, 424 U.S. 1, 44- 45 (1976) (per curiam). These conflicting precedents leave lower courts and litigants struggling to ascertain the level of scrutiny applicable to content-based restrictions that prohibit or limit political or public issue speech on the broadcasting medium – strict scrutiny as required under a content-based or political speech approach, or intermediate scrutiny as applied under a medium of expression approach?
Minority Television v. FCC, No. 13-1123 (Supreme Court) (petition stage)
Read the Amicus Brief:
Which level of scrutiny should apply to content-based restrictions that prohibit or limit political or public issues speech on the broadcasting medium? Should the medium determine the level of scrutiny?
Recent precedent indicates that this is true even when the law restricts broadcasters from airing political or public issue content. Citizens United v. FEC, 558 U.S. 310, 340 (2010) (applying strict scrutiny to law restricting political speech aired in any “broadcast cable, or satellite communication”).
The First Amendment provides “Congress shall make no law abridging the freedom of speech.” U.S. Const. amend. I. It does not make distinctions among print, broadcast, and cable media. Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 812 (1996) (Thomas, J., concurring in judgment in part).
ALF’s Amicus Brief:
In an amicus brief the ALF argues that the Supreme Court should grant certiorari and reconsider Red Lion and its progeny to simplify the law in favor of protecting speech on all mediums with First Amendment protection.
On June 30, 2014 the Supreme Court denied certiorari.
Date Originally Posted: April 18, 2014